Race and Sex-Based Hostile Work Environment Claims Survive Summary Judgment

In Burgos v. Works, No. 13-CV-704S, 2017 WL 2403305, at *8–9 (W.D.N.Y. June 2, 2017), the court (inter alia) denied defendant’s motion for summary judgment on plaintiff’s race and sex-based hostile work environment, race and sex-based adverse-action discrimination, and retaliation claims.[1]However, it dismissed plaintiff’s age-based hostile work environment and discrimination claims under the Age Discrimination in Employment Act.

As to her race and sex-based – i.e., successful (at least at the summary judgment stage) hostile work environment claims, the court explained:

Southeast Works is correct that anti-discrimination statutes are not a “general civility code,” see Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999), and a few isolated incidents of “boorish or offensive use of language” are generally insufficient to establish a hostile work environment. See Benette v. Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 251-252 (W.D.N.Y. 2003). However, making all inferences in Burgos’ favor, the allegations of harassment here are of “such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001) (internal quotation and emphasis omitted). Burgos has provided allegations of sex and race-based discrimination that are both severe and pervasive. Some of the severe incidents include allegations that Burgos’ co-workers encouraged a developmentally disabled client to call her and other black females “black nigger bitches,” and that a male co-worker rubbed his genitals on Burgos. See Rivera, 743 F.3d at 24 (noting that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates”); Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 301 (S.D.N.Y. 2011) (noting that “a reasonable jury could consider [an alleged harasser grabbing the plaintiff by the waist and rubbed his genitals against the plaintiff] sufficiently severe so as to alter the conditions of employment”). Indeed, taking into consideration all of the allegations made by Burgos, she “presents a persistent pattern of harassment that began as soon as [s]he was hired by [Southeast Works] and continued until [her resignation].” Daniel, 2017 WL 1476598, at *3.

But, given the Second Circuit’s “repeated[ ] caution[s] against setting the bar too high,” Terry, 336 F.3d at 148, Burgos’ claims would still survive even without the allegations that Southeast Works argues should be time-barred. Burgos’ co-worker, Abston, made sexually suggestive comments to Burgos and told Burgos and her female co-workers explicit details of his sex-life. Abston and others also made pervasive comments to Burgos and her co-workers regarding their sex and race. Rivera singled Burgos out while falsely stating that more heterosexual black women die from AIDS than any other demographic and that this is because HIV originated in Africa, where Africans ate “monkey meat.” Further, Burgos alleges that she was threatened and bullied after complaining of Rivera’s behavior, including by Rivera bringing a knife into the workplace and saying she would use this weapon in the “hood.” Burgos has sufficiently alleged a subjective fear arising from Rivera’s actions. Moreover, based on Burgos’ allegations of Rivera’s prior comments and the fact that she brought a weapon to the workplace, Rivera’s actions were such that a trier of fact could find that she created an objectively dangerous situation. Compare Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 915 F. Supp. 2d 498, 507 (S.D.N.Y. 2013) (finding plaintiff’s fear could not be objectively reasonable where fear was based on single verbal confrontation, generalized anger, and hearsay allegations of verbal abuse from other co-workers, and where employer made efforts to separate plaintiff from the offending co-worker); Hicks v. Baines, 593 F.3d 159, 168 (2d Cir. 2010) (trier of fact could find situation objectively dangerous where plaintiff alleged punitive scheduling by being transferred to a facility housing a troubled youth who had previously threatened violence).

*9 Making all inferences in Burgos’ favor and viewing the circumstances in their totality, this Court finds that this string of incidents “transcended coarse, hostile and boorish behavior,” see Annis v. Cnty. of Westchester, N.Y., 36 F.3d 251, 254 (2d Cir. 1994), and strayed into the realm of alarming and threatening conduct. Whether the conduct that occurred was sufficient to alter Burgos’ work environment is a factual question to be determined by the trier of fact.

(Emphasis added.)

1 However, it dismissed plaintiff’s age-based hostile work environment and discrimination claims under the Age Discrimination in Employment Act.
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